286
Souter, J., dissenting
"The first and second sentences of the section therefore mean that, where a party having the burden of proceeding has come forward with a prima facie and substantial case, he will prevail unless his evidence is discredited or rebutted." Id., at 36-37, Leg. Hist. 270-271.2
Because Congress stated that "burden of proof means" a "burden of coming forward," and further explained that the burden could be shouldered by both proponents and opponents of a rule or order, the strong probability is that Congress meant to use "burden of proof" to mean burden of coming forward and not burden of persuasion, for a burden of persuasion cannot simultaneously rest on both parties. See generally Wigmore § 2489. The commentators agree. "The legislative history suggests that the term 'burden of proof' was intended to denote the 'burden of going forward.' " 1 C. Koch, Administrative Law and Practice § 6.42, p. 486 (1985); "The legislative history of the A. P. A. burden of proof provision states that the party initiating the proceeding has, at a minimum, the burden of establishing a prima facie case, but a burden of proof may also rest on other parties seeking a different decision by the agency." 4 J. Stein, G. Mitchell, & B. Mezines, Administrative Law § 24.02, p. 24-25 (1994); accord, 3 K. Davis, Administrative Law Treatise § 16.9, pp. 257-258 (2d ed. 1980) (citing a lower court's "analysis of the Senate and House reports on the APA and the Attorney General's Manual").
2 The Attorney General found the phrase ambiguous, noting that "[t]here is some indication that the term 'burden of proof' was not employed in any strict sense, but rather as synonymous with the 'burden of going forward.' In either case, it is clear from the introductory clause that this general statement was not intended to repeal specific provisions of other statutes which, as by establishing presumptions, alter what would otherwise be the 'burden of proof' or the 'burden of going forward.' " Attorney General's Manual on the Administrative Procedure Act 75 (1947) (footnote omitted).
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